Further erosion of confidentiality

This post is for blah...blah's New Zealand readers.

Last month in the High Court at Auckland, Wicks v Waitakere City Council HC AK Civ 2005-404-5146 (unreported decision by Hansen J) made further inroads into the confidentiality of without prejudice settlement discussions, this time at a Judicial Settlement Conference.

"[1] Following a judicial settlement conference, the plaintiff and defendant entered into a settlement agreement. In this proceeding the plaintiff seeks a declaration as to the meaning of the agreement. In the event that the meaning he asserts does not prevail, he advances alternative causes of action under the Contractual Mistakes Act 1977, based on representation estoppel, for rectification, for a declaration that no agreement was reached and of non est factum.
[2] I have been asked to determine, before the substantive hearing begins, whether the plaintiff can introduce evidence of "without prejudice" negotiations and communications, a deed of settlement between the defendant and another party and of what took place at the judicial settlement conference..."

And the answer is....yes they can!

..."Relevant statements made at the judicial settlement conference may be referred to for the limited purposes referred to in this judgment"

Email me if you want a copy.

[Add this to the recent Employment Court decision of James Jesudhass v Just Hotel that allowed evidence to be given of certain matters that took place at an employment mediation and you will be forgiven for thinking there is a trend here]

Hull on Estates - mediation podcast

Here for yesterday's podcast on mediating estate matters from lawyers Hull & Hull LLP of Toronto over at the Toronto Estate Law Blog.

Detecting BS #3 - voice expression

Use Skype to conference with parties?

Well, maybe KishKish SAM™ is for you.

Its a voice answering machine for Skype users. SAM can record your Skype conversations for later reference and you can check the stress level in the voice of the caller and detect lies.

Free to trial.

Detecting BS #2 - facial expressions

Think you are a good good judge of character? Good at interpreting facial expressions?

Then try this interactive graphic based on training tools developed by micro expression guru, Dr Paul Ekman an expert in interpersonal deception.

Detecting BS #1 - micro expressions

The world of social psychology is a little weird, but useful for mediators to know about, especially when those at the table don't play fair.

Take a look at this clip for clues when parties are engaged in deceptive conduct (what the hell - lying).

First Judge Judy, now ...

Watch out for this UK reality TV show invoving a workplace mediator.

In the Goldilocks Zone

Not too hot nor too cold - yeah, I know, they've got to be in the zone to settle... and we've all seen mediations go pear shaped when parties get too hot.

...but on Friday they were too cold. Why?

I blame one factor ahead of others; the 3 stage dispute resolution contract clause that was the stick that got them to the table.

On the one hand, d/r clauses are welcome as they certainly increase our mediation work flows, but on the other they deliver parties to the mediation room in a very different and less constructive frame of mind compared to a truly voluntary process.

Related to the impact of d/r clauses on party motivation is the way some courts are 'encouraging' parties to follow the yellow brick road to mediation and what that does to party mind-set.

For those in many jurisdictions of the US, the Rubicon was crossed long ago and mediators, like those in LA, are left dealing with the results of ill advised mandatory mediation court programs.

A more cautious and welcome approach has been taken in the UK , well scoped here by UK barrister and mediator, Toby Gee. The UK decisions in Halsey v Milton Keynes NHS Trust and Burchell v Bullard undoubtedly reinforced robust judicial recommendations to mediate

Here in my Friday mediation, there were much better odds available to all in other forums where this dispute was always destined to be played out. They should never have had to be at mediation.

I learnt that everyone at mediation, including the mediator, needs to have skin in the game.

If the parties don't, they lack the investment to endure the agony and ecstasy of a robust mediation process and a good compromise.

If the mediator don't, the mediation may lack the tenacity it needs to succeed.

Mother's little helper

This typo in a mediation report to the US District Court, Northern District of Texas

mBlog Central - all your favourite mBlogs in the one place

mBlog Central

A new way to make sure you don't miss out on any must read mediation blog posts.

From ten or so of the most active and well read mediation blogs on the net...the latest 5 posts from each automatically updated … all in one place!

If you don't want to muck around with all this RSS feed nonsense, bookmark mBlog Central and visit every couple of days to stay right up to date.

New Clips over at the Mediation vBlog Project

If you have not popped into the Mediation vBlog Project in the last couple of days, get over there quick and take a look at four (count'em four) new video clips!

Just think where we can take the vBlog Project if you get involved, come on in - the water's fine!

(You may notice a few technical problems with cosmetics but we're on to it)

Hey Mister, can you spare a dime?

Dallas mediator Jeff Abrams took to living on the streets of Austin, Texas and lived to tell the tale...

'I reached into the garbage can and picked up the bottle. I lifted my head to see if any passersby had noticed me. The suits gazed straight ahead, averting their glances from my eyes....

The previous week I was a successful attorney-mediator in Dallas, making a good living, eating in fine restaurants, interacting with professional colleagues, attorneys, and judges.

Now I was living as a homeless man on the streets of Austin...' [Read More]

Icebergs and Mediation

Posting on icebergs at a mediation blog is a stretch at the best of times, but with news today of icebergs advancing on New Zealand's southern coast in spring, so close that we can see them from the shore, its worth trying to make the connection.

Actually, I've always felt icebergs and mediation go together like a horse and carriage...you know, more under the waterline than above it, chip away at the tip of positions to find those interests buried below etc, etc.

Just look at Victoria Pynchon's recent post The Tip of the Iceberg or Goggle iceberg and mediation and you'll see what I mean.

A fight with my father: a mediator reflects

Dear Diary
[15 November 06]

Listen mate, if - and more likely when - you're in conflict again, don't think like a mediator.

Next time take a moment to feel that gut wrenching anger that was like hatred in there somewhere for a split second, but quickly turned to a slow-burn and overtime, to sadness then dull sorrow.

Then explore that knot in your stomach as you stewed, having walked away from the fight. Feel the angst at having said stuff now regretted, but not able to be apologised for just yet.

Dwell in the experience of those around you who don't understand that you're so upset or are too busy with their own lives to notice.

Know that time is precious now.

Then later feel that extraordinary dawning of distance, when perspective imposes itself.

And a loving life resumes...

And reflect that every week you sit with people in this same space.

Don't ever forget that.

Hot off the press! Transformative Mediation Series: DVD Family Ties

Family Ties - a demonstration of transformative mediation in a family conflict - is about a grandmother, Denice, who has requested mediation in order to enforce her right to visit her granddaughter, Erin.

She has her attorney with her. The child's mother, Katie, is planning to move across the country to attend an MBA program and to be closer to her boyfriend. The parties have met once before with the mediator and this video shows the first 30 minutes of this mediation session.

The purpose of this video is to demonstrate the transformative model of mediation and strategies of a transformative mediator. This is not intended to be a "perfect" demonstration of the model, but a consistent demonstration by a transformative mediator with a particular style.

Family Ties and the (been around for a while) Purple House Conversations:a Demonstration of Transformative Mediation in Action

Order both here;

Restorative Justice "Beyond Conviction"

'Beyond Conviction' airs in the US on MSNBC TV December 3.

Watch a promo here and here

This documentary tells the story of two survivors of horrific crimes on a journey toward healing and resolution.

It follows participants through a restorative justice program in which victims of the most violent crimes confront the perpetrators.

In this essay, the director Rachel Libert shares her experience making the film.

Hat tip: The Point

RSS

Seems everyone is suddenly rushing to explain RSS feeds this week.

Well they are the future, I guess.

Here's A-lister Dennis Kennedy's take on it at Law Practice Today

'Depending on who you talk to, the acronym RSS stands for a couple of different things: Really Simple Syndication and Rich Site Summary are the most commonly used. For a good, technical definition of the term, check out Wikipedia on RSS, and the above-mentioned Web Feeds definition. Tom's favorite new description of RSS comes from RSS the Oprah Way, which describes RSS as "I'm Ready for Some Stories!" If you're looking for a more visual way of understanding RSS and how to use it, we both agree that the RSS Tutorial for Law Librarians tutorial webcast is a great place to start. Even though it's designed for law librarians, anyone can benefit from the content.'

Here's my take on it in my Blogosphere article at mediate.com;

'Sites like Bloglines work because of technology called content feeds (or RSS - darn, I wanted to avoid that) but RSS is the high-tech version of the guy who, at precisely 5.43am every morning except Sunday, throws my newspaper over the fence and hits the side of our house here in Wellington – the news comes to me – I don’t have to go down the street and get it in my jammies. Want to know more? . . . check out Getting started with Bloglines/FONT> at Wisconsin Lawyer.'

New Word

Mediatee

HEY YOU!

...DON'T COME TO MEDIATION TO EAT YOUR LUNCH!

And just in case you read blogs, I'm going to say it real small and hard to read... please don't come to mediation again and spend the first 10 minutes lecturing me on 'what a tough one this one's going to be Geoff; actually, Geoff, I advised against mediation 'cause this will be a waste of time; you'll have your work cut out today Geoff;...sorry if we spoil your stats Geoff... blah...blah...'

Hey, this is not a drill.

It's we, it's a partnership, the process needs the mediator and counsel to underpin and support the conversation, not have you compete against the process in an effort to be in the alpha male in the room.

Your client needs you to change gears, step up and get with the program - your task is fundamentally different from that of trial.

I mean, if that's OK with you?

This is heresy talk

It's outrageous and we mediators should not take this lying down.

Here's a guy suggesting that face-to-face meetings are less effective than more efficient alternatives.

Sure, Professor Scott Armstrong might well be Professor of Marketing at the Wharton School, University of Pennsylvania, internationally known for his pioneering work on forecasting methods and founder of the Journal of Forecasting, the International Journal of Forecasting and a bunch of other stuff... but geeez, putting the hex on flesh meetings is beyond the pale.

What's an itinerant mediator to do now?

You just can't go around saying that there is a...

"prevalence of studies showing that, compared with other methods of aggregating opinions... the simple act of meeting face-to-face harms... decision making, although the people involved in these experiments typically do not believe the results"

...suggesting instead that we somehow form ourselves into "markets (prediction, information or betting markets), nominal groups or virtual teams" so as to allow for a more effective use of a group’s collective wisdom.

Get a grip, man!

The NZ Domain Name Commissioner probably agrees with the Professor.

How to make better forecasts and decisions; avoid face to face meetings by J. Scott Armstrong

Hat tip to Decision Science News

Worth a read this weekend...

For a mediator The Trial Lawyer Resource Center Group Blog is kind of like being caught sneaking a look through the key hole of the courtroom door.

Its full of trial tips and techniques from a group of US leading trial lawyers.

Take a look in particular at the posts tagged settlement/mediation, post-settlement issues and questions.

Mastering Mediation Blog

At last, the first of our growing family of mediation blogs to go to college!

Mastering Mediation Blog is a collaborative project between the program faculty, adjunct faculty and graduate students in Woodbury College’s master’s program in Mediation and Applied Conflict Studies.

These guys really get it.

"... people who both teach and practice mediation are the truly lucky ones. We become better teachers by being in the mediation room regularly and better mediators by being in the classroom. Each role feeds the other dynamically.This blog grew from that belief..."

Hallelujah! Right on, sister Tammy!

Mastering Mediation is, then, a collaborative exploration of the ways we learn to be effective mediators and how to teach people to become so. Contributing bloggers will include the program faculty (all of whom are active practitioners—there are no full-time faculty in our program), adjunct faculty, current master’s students and candidates (whose ages generally range from 25-75), and the occasional alumni voices...

Related: Why can't scholars and practitioners just get along?